Symposium - Interpreting Equality Rights in India's Constitution: the Manifest Arbitrariness Test

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Vanshaj Jain

University of Oxford

The content of Article 14 of the Indian Constitution, which protects the right to equality, has been subject to much debate over the years. However the decision in Navtej Johar v. Union of India will play a decisive role in determining the interpretation to be accorded to this provision, as it substantially enhances the reach of Article 14 by affirming the ‘manifest arbitrariness’ test.  

The traditional “classification” test used to determine Article 14-compatibility was the one that dominated judicial interpretation, initially. As laid down in Anwar Ali Sarkar:

“In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while the Article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained.”

However, the content of Article 14 was sought to be expanded by J. Bhagwati in the Royappa case where he observed:

“Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14.”

In Maneka Gandhi and Ajay Hasia, the Court elaborated on this test of ‘arbitrariness’, which was separate from (and, arguably, subsumed) the test of ‘classification’:

“It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not para-phrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality”

The unique advantage offered by the ‘arbitrariness’ doctrine was that Article 14 violations were no longer contingent of making a comparative evaluation – non-comparative unreasonableness could, now, also amount to a violation of the provision. However, this test of ‘arbitrariness’ was also criticised for lacking any clear content and for ‘hanging in the air’, or for being a mere sub-part of the classification test. This criticism led to the Supreme Court decision in McDowell, where Reddy J. observed:

“…if an enactment [is] challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein…no enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act.”

This position was subsequently reiterated in the Natural Resources Allocation case, and in the Rajbala case. As Naniwadekar points out, it is arguable that these decisions incorrectly interpreted the ‘arbitrariness’ test and were per incuriam for contradicting a five-judge bench decision in Royappa. Nonetheless, no clarity could be found on the continuing applicability of the ‘arbitrariness’ doctrine as an independent metric for judging Article14 compatibility. A clear attempt to provide this clarity was made by Nariman J. in Sharaya Bano, where he (along with Lalit J.) expressly adopted a test of ‘manifest arbitrariness’ to strike down s.2 of the 1937 Muslim Personal Law (Shariat) Application Act in so far as it covered triple talaaq, which permitted a Muslim man to divorce his wife by pronouncing the word ‘talaaq’ (divorce) thrice. Unfortunately, since the position of Joseph J. on this test remained unclear, it could not be said that an independent test of arbitrariness had been adopted by a majority of the bench, and thus the position of this doctrine remained uncertain.

It is for this reason that the Court’s unanimous adoption of the ‘manifest arbitrariness’ doctrine in Navtej Johar is of such immense significance. It finally lays to rest the question of whether Article 14 contains any residual positive content, beyond the ‘classification’ test. Nonetheless, the content of this ‘manifest arbitrariness’ doctrine still remains unclear and, therefore, susceptible to the criticism levied against the Royappa doctrine by H.M Seervai and others. Until the Court clearly addresses the content and meaning of ‘manifest arbitrariness’, its utility will remain unclear, subject to judicial discretion, and its foundations will continue to be weak.

Vanshaj Jain is a graduate from the National Law School of India University and a Rhodes scholar at the University of Oxford.

Suggested Citation: V Jain, ‘Interpreting Equality Rights in India's Constitution: the Manifest Arbitrariness Test’ IACL-AIDC Blog, Symposium ‘Section 377 Judgement Expanding LGBT Rights in India’ (September 17 2018)